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[2012] NSWCCA 223
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R v BUGMY [2012] NSWCCA 223 (18 October 2012)
Last Updated: 22 October 2012
Case Title:
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Medium Neutral Citation:
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Hearing Date(s):
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Decision Date:
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Jurisdiction:
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Hoeben JA: at [1] Johnson J: at [57] Schmidt J:
at [58]
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Decision:
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(1) Crown appeal allowed. (2) Confirm the
sentence imposed in the District Court on 16 February 2012 in respect of counts
1 and 2. (3) Quash the sentence imposed in the District Court on 16 February
2012 in respect of count 3. (4) In substitution for the sentence imposed in
respect of count 3, sentence the respondent as follows: Count 3 -
Imprisonment with a non-parole period of 5 years to commence 8 April 2011 and to
expire 7 April 2016 with a balance of term of
2 years and 6 months to commence 8
April 2016 and to expire 7 October 2018.
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Catchwords:
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CRIMINAL LAW - sentence appeal - causing grievous
bodily harm with intent to cause grievous bodily harm - prison officer struck in
eye with pool ball losing sight of that eye - failure to have adequate regard to
category of victim when assessing objective seriousness
of offence - error in
treatment of respondent's mental illness - whether Court should continue to have
regard to respondent's background
of social deprivation - need to re-sentence -
sentence should be increased.
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Legislation Cited:
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Parties:
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Regina - Appellant Crown William Bugmy -
Respondent
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Representation
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Counsel: Mr R Herps - Appellant Crown Ms D
Yehia SC - Respondent
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- Solicitors:
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Solicitors: S Kavanagh, Solicitor for Public
Prosecutions - Appellant Crown SE O'Connor, Legal Aid Commission -
Respondent
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Decision Under Appeal
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Publication Restriction:
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JUDGMENT
- HOEBEN
JA:
Offences and sentence
On 17 May 2011 the respondent pleaded guilty to the following charges:
(i) That on 8 January 2011 at Broken Hill did assault Steven Pitt, a
Corrective Services Officer, while in the execution of his duty,
contrary to
s60A(1) Crimes Act 1900 for which the maximum penalty is imprisonment for
5 years.
(ii) That on 8 January 2011 at Broken Hill did assault John Donnelly, a
Corrective Services Officer, while in the execution of his
duty, contrary to
s60A(1) Crimes Act 1900 for which the maximum penalty is imprisonment for
5 years.
(iii) That on 8 January 2011 at Broken Hill did cause grievous bodily harm to
Jason Gould with intent to cause grievous bodily harm,
contrary to s33(1)(b)
Crimes Act 1900 for which the maximum penalty is imprisonment for 25
years and which has a standard non-parole period of 7 years.
- On
16 February 2012 the respondent was sentenced by Lerve ADCJ as
follows:
Counts 1 and 2 - Imprisonment for a fixed term of 8
months to commence on 8 January 2011 and expire on 7 September 2011.
Count 3 - Imprisonment for a non-parole period of 4 years to commence
on 8 April 2011 and expire 7 April 2015 with a balance of term of 2 years
to
expire on 7 April 2017.
The effect of the sentence was a non-parole period of 4 years and 3 months
with a balance of term of 2 years.
- The
Director of Public Prosecutions has appealed against that sentence, pursuant to
s5D of the Criminal Appeal Act 1912 on the following grounds:
(1) His Honour failed to properly determine the objective
seriousness of the offence.
(2) His Honour failed to properly acknowledge the category of the victim as a
serving Prison Officer in the lawful performance of
his duties.
(3) The weight his Honour afforded the respondent's subjective case
impermissibly ameliorated the appropriate sentence.
(4) The total sentence imposed was manifestly inadequate.
Factual Background
- A
Statement of Agreed Facts was tendered by the Crown and became part of exhibit
A. The following is taken from that Statement of
Facts.
- The
victim in relation to count 3, Officer Gould, was aged 43 and was a Senior
Correctional Officer at the Broken Hill Correctional
Centre at the time of the
offence. He had worked there for 11 years. At that time, the respondent was an
inmate of the Correctional
Centre, having been remanded in custody on 2 November
2010 with respect to three charges of assault police, two of resisting an
officer
in the execution of his duty, escape from police custody, intimidate
police and causing malicious damage by fire. He was aged 29.
- Officer
Gould's attention was drawn to the respondent when he heard him abusing Officer
Caldwell. When Officer Gould asked the respondent
what the problem was, he
demanded that gaol visiting hours be extended because his visitors would not
arrive before 1pm, after which
time visitors were not allowed entry. Officer
Gould undertook to make an inquiry of a senior officer to see whether the hours
could
be extended.
- Shortly
thereafter, the respondent entered the wing office where Officers Gould and
Caldwell were standing. The respondent's presence
in that office was prohibited.
The respondent offered to fight Officer Gould and made various threats to him
including "I'll split
you open you cunt". Officer Gould, fearing a security
incident, advised Assistant Superintendent Pitt who was his superior, that
the
Emergency Team might be required to attend his location. The respondent then
left the office and walked into the exercise yard.
- Some
minutes later, A/S Pitt, the victim in respect of count 1, attended the wing. He
and Officer Donnelly, the victim in respect
of count 2, went into the yard to
speak to the respondent, who was speaking on a telephone. That telephone call
was recorded and
in it the respondent told his girlfriend that he would "split
Gould open".
- After
the respondent had finished his call, A/S Pitt asked "How did you go?" to which
the respondent replied "That cocksucker, I'll
get him". A/S Pitt said "No, I'm
talking about your phone call, how did it go?" The respondent replied "Come on,
you want a piece
of me I'll split you cunts". The respondent ran to a nearby
pool table and took a number of pool balls in his hands.
- He
then threw two pool balls at A/S Pitt and Officer Donnelly, one of which
narrowly missed A/S Pitt. The respondent yelled "Come
on cunts, I'll split
youse". (These were the facts which gave rise to Counts 1 and 2.)
- A/S
Pitt and Officer Donnelly called for assistance on the radio. Officer Gould went
into the yard and saw thrown pool balls coming
from the direction of a gateway.
The respondent came into view and began throwing pool balls towards Officer
Gould. The respondent
said "Gould you cunt, I told you I'm going to split you
open". He then threw two balls at Officer Gould, both of which struck him
on the
back. The respondent ran some metres into the yard.
- Officer
Gould retreated into the wing office with other officers. As he attempted to
secure the office door, the respondent threw
two pool balls at him, one of which
struck him in the left eye causing serious injuries to his eye. (These were the
facts which gave
rise to count 3.)
- The
respondent continued to throw pool balls towards the correctional officers,
before climbing onto the gymnasium roof carrying a
number of pool balls.
Although he continued to throw balls towards the officers, none of them struck
anyone. Following negotiations,
he came down from the roof and surrendered.
After doing so, the respondent expressed "some joy" that Officer Gould was
injured. The
respondent said that he "had not finished with Gould".
- Officer
Gould sustained a serious eye injury, including retinal detachment and orbital
(eye socket) fractures. Officer Gould underwent
a number of significant
operative procedures. Although the bony structures around the eye were repaired
by the use of bone grafts
and a metal plate, the doctors were unable to save the
sight in his left eye. Officer Gould lost the sight in that eye. It was accepted
that not only did Officer Gould suffer significant physical harm, but he also
suffered psychological damage, developed post traumatic
stress disorder and lost
his career.
- The
matters for which the respondent was being held on remand were dealt with by the
Dubbo Local Court on 12 March 2012. The respondent
was sentenced to imprisonment
for 4 years, with a non-parole period of 2 years, commencing 2 November 2010. As
can been seen, except
for the period 2 November 2010 - 7 January 2011, that
sentence was concurrent with that imposed by Lerve ADCJ, which is the subject
of
this appeal. a.
Remarks on sentence
- Having
reviewed the factual background, his Honour took into account as an aggravating
factor pursuant to s21A(2)(a) Crimes (Sentencing Procedure) Act 1999,
that Officer Gould was a Correctional Services Officer. His Honour also took
into account as a matter of aggravation, pursuant to
s21A(2)(g), that Officer
Gould had suffered significant psychological injury. His Honour took into
account that the use of a pool ball as a
weapon was a matter of aggravation
pursuant to s21A(2)(c). His Honour saw no difference in principle between the
use of a pool ball as a weapon and a firearm or a knife.
- In
considering the objective seriousness of the offence, his Honour took into
account that an offence contrary to s33(1)(b) Crimes Act 1900 was a
"result offence". His Honour was mindful of what Howie J (with whom McClellan CJ
at CL and Simpson J agreed) said in Ciaron McCullough v R [2009] NSWCCA
94 at [37]:
"37 Malicious wounding is principally a result offence. Generally
speaking the seriousness of the offence will significantly depend
upon the
seriousness of the wounding. That is not to say that the manner in which the
wound was inflicted, the reason for the infliction
of the wound and the
circumstances surrounding the wounding are irrelevant. The same can be said for
an offence involving the infliction
of grievous bodily harm: the more serious
the harm inflicted the more serious the offence: see R v Mitchell and
Gallagher [2007] NSWCCA 296; 177 A Crim R 94 at [27]."
- In
addition to the serious consequences of the offence, his Honour took into
account that there was no provocation by Officer Gould.
His Honour noted that
although there was no evidence that the respondent intended to blind Officer
Gould, it was an element of the
offence to which he had pleaded guilty, that he
intended to cause grievous bodily harm.
- His
Honour accepted that there was no planning of the offence and that the
respondent had committed it on the spur of the moment in
a fit of anger, when he
did not get what he wanted. His Honour assessed the matter as "being slightly
less serious than the mid-range
of objective seriousness for offences of this
kind".
- His
Honour summarised the respondent's criminal record which was a very poor one. He
had first come to the notice of the courts in
February 1994 when he was aged 13.
Between that date and 26 June 2001 when he came before the courts as an adult,
he had been convicted
of numerous break, enter and steal offences; assaults;
resisting police and damage to property for which he had been sentenced to
control orders on a number of occasions.
- From
26 June 2001 his offending had continued in an almost unbroken sequence until
the occurrence of these offences. The offences
for which he was convicted
included numerous assaults; break, enter and steal; destroy and damage property
and resist police. He
received terms of imprisonment for those offences. He had
spent much of the time between 26 June 2001 and the date of these offences
in
custody. His Honour took his criminal record into account as an aggravating
factor, pursuant to s21A(2)(d) Crimes (Sentencing Procedure) Act 1999, as
that term was used in R v McNaughton [2006] NSWCCA 55; 66 NSWLR 48.
- The
respondent did not give evidence. In relation to his subjective case, his Honour
had before him a pre-sentence report. It showed
that he was of Aboriginal
background and had been exposed to violence and alcohol abuse as a child. He was
educated to year 7 and
had poor literacy and numeracy skills. The respondent
commenced using cannabis and alcohol at the age of 12 and developed a high
degree of dependency on those substances. The respondent had not done well when
attending community-based drug and alcohol counselling.
He had never attended a
long-term residential rehabilitation program.
- There
were two reports by Dr Bruce Westmore, forensic psychiatrist, of 1 August and 11
November 2011 before his Honour. In the report
of August 2011 Dr Westmore
concluded:
"Mr Bugmy is a 29 year old man who was born into a large family. He
said as a boy he was frequently in trouble and he told me that
he had threatened
teachers with knives. He said he had contact with the police and was placed in
boys' homes and Juvenile Justice
facilities. He witnessed domestic violence and
said that his father had stabbed his mother.
Mr Bugmy has a history of alcohol abuse and substance abuse. There was a
history of head injuries as well. He said that he was transferred
from a
Juvenile Justice facility to an adult prison and since the age of 18 he has not
spent one birthday in the community. He reports
that he went downhill following
the death of his mother six years ago, although the history would suggest that
he has had very serious
problems for most of his life.
...
Mr Bugmy frequently indicated that he believes his principal problem is that
of alcohol abuse. He said that he had asked for assistance
on numerous occasions
without success. He said he had never attended a detoxification or
rehabilitation facility. He has very negative
attitudes towards authority
figures, particularly police and I suspect also prison officers. There may be
some family "cultural issues"
which are also relevant to his negative views.
He describes auditory hallucinations, these are of uncertain origin but may
be related to alcohol abuse, although that may also be
less likely if he
continues to have these experiences many months after he last took alcohol. ...
From a psychiatric perspective
Mr Bugmy does require extended counselling for
his drug and alcohol abuse problems and he needs regular psychiatric review in
view
of his reported "voices"."
- A
supplementary report of November 2011 recorded psychotic symptoms which occurred
in 2009, as a result of which the respondent was
admitted to a psychiatric
institution. Dr Westmore set out his conclusions in the supplementary report as
follows:
"He was identified in 2009 as having auditory hallucinations.
Clinical notes do not consistently refer to a definitive diagnosis but
a
schizophreniform illness was considered at one stage. This refers to an illness
of a schizophrenic type and, on the assumption
that he has not used illicit
drugs or alcohol now for an extended period, it would seem likely that his
reported psychotic symptoms
are of a primary psychotic origin, rather than those
symptoms arising from secondary factors such as drugs or alcohol. It is also
possible that his reported psychotic symptoms occur in the context of a
Depressive Disorder."
- His
Honour accepted that neither report of Dr Westmore established a link between
the mental disorders and the respondent's offending
behaviour. His Honour
referred to R v Engert (1995) 84 A Crim R 67, R v Hemsley [2004]
NSWCCA 228 at [33] - [36]; and Muldrock v The Queen [2011] HCA 39; 244
CLR 120. His Honour took note of what those cases said in relation to reducing
the effect of general deterrence when an offender suffers from
a mental
illness.
- His
Honour also had regard to the remarks of Wood J in R v Fernando NSWCCA
(unreported, 14 March 1992) 76 A Crim R 58 and Kennedy v R [2010] NSWCCA
260 where this Court stated that sentencing decisions should recognise social
disadvantage that precedes the commission of a crime.
- His
Honour reached the following conclusions in relation to those matters:
"47 Mr Lawrence on behalf of the offender submits that "significant
moderation to the weight to be given to general deterrence is
warranted on
account of the totality of the psycho-social evidence". I am certainly prepared
to allow some moderation to the weight
to be given to general deterrence because
of those issues.
...
52 Clearly the Fernando/Kennedy type issues are present in this
matter, and accordingly, I will need to take them into account when considering
the subjective case
for the offender.
...
59 Clearly enough, in the circumstances, there is that issue of general
deterrence to be considered. However, there is also the issue
of the mental
health issues suffered by the offender in this matter to be considered.
...
62 Mr Lawrence submits and I agree that there should be a finding of special
circumstances in this matter. The offender is in danger
of being
institutionalised and there is on the medical evidence a very great need for
intensive residential fulltime rehabilitation.
These factors clearly operate
very much in favour of a finding of special circumstances despite the
substantial criminal history
of the offender. The offender is going to require
ongoing intensive and extensive supervision if he is going to rehabilitate
himself
from alcohol and substance abuse and remain offence free."
- His
Honour allowed a 25 percent discount for the respondent's early plea of guilty
and used as his start point, imprisonment for 8
years for the offence contrary
to s33(1)(b) of the Crimes Act 1900.
The Crown Appeal
Ground 1 - His Honour failed to properly determine the objective
seriousness of the offence.
Ground 2 - His Honour failed to properly acknowledge the category of
the victim as a serving prison officer in the lawful performance
of his
duties.
- These
grounds of appeal raise the same issue and can conveniently be dealt with
together. Like the other grounds of appeal, their
focus is on count 3.
- When
assessing the objective seriousness of the offence, his Honour expressed himself
as follows:
"29 In oral submissions Mr Lawrence put that I would find that the
matter is "well below" the mid-range of seriousness. The Crown
prosecutor in his
oral submissions reminded me of the permanent nature of the injury sustained by
Mr Gould and the use of the weapon,
namely the pool ball. As I understand the
submissions by the Crown, it was submitted by the Crown that the matter was at
or about
the mid-range of seriousness for matters of this type.
30 In all the circumstances, I am of the opinion that the matter falls within
the range of being slightly less serious than the nominal
mid-range of objective
seriousness of these types of matters that come before this Court."
- In
reaching that conclusion, his Honour appears to have misunderstood the
submissions of the parties. It was conceded in oral submissions
by the
respondent that the injuries suffered by Officer Gould were "somewhere between
mid-range and somewhere above mid-range" (Transcript,
15.12.11, p8). In the
respondent's written submissions, the following was said:
"52 Balancing these factors it is submitted that the Court would
come to the view that the offence is properly characterised as mid-range."
The Crown made no specific submission on this issue, other than to say in
general terms that it was a serious offence.
- His
Honour, of course, was not bound by the submissions of the parties and was
required to make his own assessment of objective seriousness.
It is, however,
somewhat disquieting that his Honour comprehensively misstated the submissions
of the parties. In view of the concession
made by the respondent as to the
objective seriousness of the offence in Count 3, one would have expected his
Honour to provide some
reasons for why he was not prepared to accept it.
- In
the circumstances of this matter, the concession by the respondent was correctly
made. The offence was a serious example of offences
of this kind. Being a
"result offence", the consequences for Officer Gould were relevant. He suffered
a significant injury to the
structures surrounding his left eye, which resulted
in a number of painful operations. In addition, he developed significant post
traumatic stress and psychological difficulties, lost the sight in his left eye
and lost his employment.
- The
surrounding circumstances did not assist the respondent. There was no
provocation and the respondent's motivation appears to have
been no more than a
fit of anger brought about by a disruption of his visitation rights. Finally,
the use of a pool ball as a weapon
is a significant matter of aggravation. The
lack of planning and "spur of the moment" nature of the offence does not greatly
mitigate
those factors.
- The
Crown's second ground of appeal focused upon one of the aggravating features of
the offence. It has, in my opinion, considerable
force. Whilst his Honour
acknowledged the application of s21A(2)(a) of the Crimes (Sentencing
Procedure) Act 1999 in that Officer Gould was a Correctional Services
Officer, thereafter that aggravating feature appears to have played no part in
his reasoning. As the authorities make clear, this was a very important matter
of aggravation.
- In
Peter Schneidas (No 1) (1980) 4 A Crim R 96 at 100, Lee J (with whom
Street CJ and Maxwell J agreed) said:
"The safety of prison officers lawfully carrying out their duties
in a prison is a matter of prime importance to the proper administration
of the
prison system, and this Court cannot but view as a serious crime an unprovoked
attack with a metal bar upon a prison officer.
The assault having taken place
within the prison required a sentence in which the deterrent element not only in
regard to the appellant
but in regard to other prisoners was made manifest
..."
- In
Regina v Davis (NSWCCA, unreported, 4.2.1994) Wood J (with whom Gleeson
CJ and Meagher JA agreed) said:
"The maintenance of discipline within corrective institutions is a
matter of very great importance. The potential for substantial
damage to public
property and for serious physical harm, both to prison officers and other
inmates, as a result of breaches of gaol
discipline, is considerable,
particularly in circumstances of unrest or dissatisfaction over matters of
policy. It is a consequence
of that fact that sentences for offenders involving
attacks on prison officers in the execution of their duty must involve, as a
significant component, both personal and general deterrence. Save in special
circumstances, such sentences, in my view, should be
accumulated upon any
sentence already being served otherwise the sentences loses any sting of
personal deterrence."
- In
his sentencing remarks, his Honour at no time made reference to the element of
personal deterrence. In this case, that was an important
matter which required
consideration. Similarly, his Honour does not appear to have adequately
appreciated the importance of general
deterrence in the particular circumstances
of this offence.
- Accordingly,
despite the essentially discretionary nature of an assessment of the objective
seriousness of an offence, I am satisfied
that his Honour erred in his
assessment of the offence in count 3. These grounds of appeal have been made
out.
Ground 3 - The weight his Honour afforded the respondent's
subjective case impermissibly ameliorated the appropriate sentence.
- The
Crown submitted that the respondent's subjective case had few positive features.
It submitted that his Honour failed to take into
account the absence of any
contrition and remorse on the part of the respondent. The Crown submitted that
nowhere in the reports
tendered on his behalf did the respondent accept
responsibility for his actions, or acknowledge the injury, loss and damage which
he had caused (Butters v R [2010] NSWCCA 1 at [17] (Fullerton J with whom
McClellan CJ at CL and McCallum J agreed)). I agree with this submission.
Nowhere did his Honour refer to
this.
- The
Crown submitted that his Honour failed to give adequate weight to the
respondent's bad criminal record. It submitted that apart
from these offences
and the offences for which he was on remand, he had been convicted of more than
43 offences involving violence.
It submitted that his Honour should have given
greater weight to his criminal record in the sentencing process than by simply
referring
to s21A(2)(d) Crimes (Sentencing Procedure) Act 1999.
- I
agree. The sheer number of offences of violence and other offences of which the
respondent had been convicted before these offences
is the very circumstance
which attracted the observations of the High Court in Veen v R (No 2)
[1988] HCA 14; 164 CLR 465 at 477 where the plurality (Mason CJ, Brennan, Dawson
and Toohey JJ) said:
"The antecedent criminal history is relevant, however, to show
whether the instant offence is an uncharacteristic aberration or whether
the
offender has manifested in his commission of the instant offence a continuing
attitude of disobedience of the law. In the latter
case, retribution, deterrence
and protection of society may all indicate that a more severe penalty is
warranted. It is legitimate
to take account of the antecedent criminal history
when it illuminates the moral culpability of the offender in the instant case,
or shows his dangerous propensity or shows a need to impose condign punishment
to deter the offender and other offenders from committing
further offences of a
like kind."
- The
Crown submitted that his Honour erred in taking into account the respondent's
mental illness so as to reduce the weight to be
given to general deterrence. It
submitted that it was conceded by the respondent that his mental illness had
nothing to do with the
count 3 offence. It submitted that this was not a case
where the respondent lost control of himself because of a pre-existing condition
which might demonstrate a diminished capacity for self-control. The Crown
submitted that the other matters identified in R v Hemsley [2004] NSWCCA
228 and more recently in Director of Public Prosecutions (Cth) v De La
Rosa [2010] NSWCCA 194; 79 NSWLR 1 to which mental illness may give rise,
did not apply here.
- I
agree. In Beldon v R [2012] NSWCCA 194 Johnson J (with whom McClellan CJ
at CL and Hammerschlag J agreed) said:
"33 Where it is said that an offender suffers from a mental
condition or disorder, this may bear upon the question of sentence in
a number
of different ways, depending upon the circumstances of the case. As Gleeson CJ
observed in R v Engert (1995) 84 A Crim R 67 at 69, it is erroneous in
principle to approach the law of sentencing as though automatic consequences
follow from the presence or
absence of particular factual circumstances such as
a mental disorder.
34 Court decisions in this area have identified a number of ways in which the
presence of a mental condition or disorder may bear
upon the question of
sentence. A helpful summary of these factors appears in the judgment of
McClellan CJ at CL in Director of Public Prosecutions (Cth) v De La Rosa
[2010] NSWCCA 194; 79 NSWLR 1 at 43 [177]:
"Where an offender is suffering from a mental illness, intellectual handicap
or other mental problems the courts have developed principles
to be applied when
sentencing: see, eg, R v Engert (1995) 84 A Crim R 67; R v
Tsiarias [1996] VicRp 26; [1996] 1 VR 398 at 400; R v Fahda [1999] NSWCCA 267 at
[40]- [48]; Lauritsen v R [2000] WASCA 203 ; (2000) 114 A Crim R 333 at
[43]- [51]; R v Harb [2001] NSWCCA 249 at [35]- [45]; R v Israil
[2002] NSWCCA 255; R v Hemsley [2004] NSWCCA 228 at [33]- [36]; R v
Verdins [2007] VSCA 102 at [32]; Courtney v R [2007] NSWCCA 195 at
[14]- [18]; and R v Henry [2007] NSWCCA 90 at [28]. They can be summarised
in the following manner:
· Where the state of a person's mental health contributes to the
commission of the offence in a material way, the offender's
moral culpability
may be reduced. Consequently the need to denounce the crime may be reduced with
a reduction in the sentence: R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at
[254]; Miller v R [1999] WASCA 66 at [23]; R v Jiminez [1999]
WASCA 7 at [23], [25]; Tsiaras at 400; Lauritsen at [51]; Israil
at [23]; R v Pearson [2004] NSWCCA 129 at [43]; Henry at [28].
· It may also have the consequence that an offender is an inappropriate
vehicle for general deterrence resulting in a reduction
in the sentence which
would otherwise have been imposed: Engert at 71; R v Wright (1997)
93 A Crim R 48 at 50-51; Israil at [22]; Pearson at [42]; Henry at
[28].
· It may mean that a custodial sentence may weigh more heavily on the
person. Because the sentence will be more onerous for that
person the length of
the prison term or the conditions under which it is served may be reduced:
Tsiaris at 400; Jiminez at [25]; Israil at [26]; Henry at
[28].
· It may reduce or eliminate the significance of specific deterrence:
Courtney at [14]; Tsiaras at 400; Israil at [25]; JW at [192].
· Conversely, it may be that because of a person's mental illness, they
present more of a danger to the community. In those circumstances,
considerations of specific deterrence may result in an increased sentence:
Israil at [24]; Henry at [28]. Where a person has been diagnosed with an
Antisocial Personality Disorder there may be a particular need
to give
consideration to the protection of the public: R v Lawrence (2005) NSWCCA
91 per Spigelman CJ at [23]-[24].""
- Although
the above principles are relatively familiar and have been referred to and
quoted in many decisions of this Court, it is
useful to keep in mind the
rationale behind them and the qualification by Gleeson CJ in Engert. His
Honour seemed to assume that because there was a diagnosis of mental illness,
this automatically had the effect that the respondent
was to some extent an
inappropriate vehicle for general deterrence. That was an erroneous
approach.
- The
rationale behind reducing the weight to be given to general and specific
deterrence in the case of mental illness is clear. If
the mental illness or its
symptoms were directly involved in the commission of the offence, then clearly
that is a special subjective
circumstance particular to the offender which would
take him or her outside the general population, so that the principles of
general
and specific deterrence have little or no application. Alternatively, as
the Crown submitted, the nature of the mental illness may
be such as to reduce
an offender's ability to control his or her actions, thereby indirectly
contributing to the commission of the
offence.
- Here,
the mental illness identified by Dr Westmore did not give rise to such
considerations, nor did it give rise to any of the other
matters identified in
De La Rosa. It had nothing to do with any aspect of the offending. To the
extent that Dr Westmore made any diagnosis, it was expressed in general
terms
and it would involve speculation, rather than inference, to take it into account
when sentencing the respondent in respect
of the count 3 offence. Because his
Honour did take it into account in that way, he fell into error.
- The
Crown submitted that his Honour erred in taking into account the difficult
circumstances of the respondent's youth, in particular
the prevalence of alcohol
abuse and the lack of parental guidance. The Crown submitted that this
consideration lost much of its force
when it was raised against a background of
numerous previous offences.
- The
Crown relied upon the observations of Hislop J (with whom Bell and Howie JJ
agreed) in R v Ah-See [2004] NSWCCA 202 where his Honour
said:
"20 In my opinion, the applicant's subjective case is not
advanced in reliance upon Fernando's case and the applicant's
aboriginality.
21 In any event, it is not every case of deprivation and disadvantage
suffered by an offender of aboriginal race or ancestry that
calls for the
special approach adopted in Fernando (see R v Newman [2004] NSWCCA
102 per Howie J at [61]) and the mitigating effect of being an aboriginal person
loses much of its force where the offender has committed
similar serious
offences in the past (see R v Drew [2000] NSWCCA 384 per Newman J at
[21])."
- I
agree that with the passage of time, the extent to which social deprivation in a
person's youth and background can be taken into
account, must diminish. This is
particularly so when the passage of time has included substantial offending.
Nevertheless, it is
still a matter of relevance which can properly be taken into
account in the sentencing process. Here, for the reasons set out in
Ah-See, the extent to which his Honour could take those matters into
account was limited. They were, however, matters which were relevant
to
sentencing and it was not an error on his Honour's part to have regard to
them.
- The
relevant principle was restated in Regina v Fernando [2002] NSWCCA 28 by
Spigelman CJ (with whom Wood CJ at CL and Kirby J agreed) as follows:
"64 As is well established, it is a primary objective of sentencing
for criminal offences that the community must be protected from
the commission
of crimes, by deterring both the particular offender and other possible
offenders - referred to as personal and general
deterrence respectively. In a
case of the character now before the Court, by an offender with this record, the
protection of the
community requires a substantial period of imprisonment. It
is, however, often the case that such considerations of deterrence are
properly
tempered by considerations of compassion which arise when the Court is presented
with information about the personal circumstances
which have led an individual
into a life of crime.
65 Such considerations are present in the case before the Court. The
Respondent has a personal history of deprivation that is, regrettably,
far too
common amongst young people, particularly Aboriginal youth.
66 The sentencing principles to be applied by a sentencing court apply in
every case, irrespective of the membership of the particular
offender of an
ethnic or other group. Nevertheless, when imposing sentences courts must take
into account, pursuant to those very
principles of general application, all of
the facts relevant to the circumstances of the offence and of the offender,
including facts
which may exist by reason of the person's membership of a
particular group. (See e.g. Neal v The Queen [1982] HCA 55; (1982) 149 CLR 305 at
326.)
67 Aborigines who commit crimes of violence are not accorded special
treatment by the imposition of lighter sentences than would otherwise
be
appropriate having regard to all of the relevant considerations, including the
subjective features of a particular case. An offender
is not entitled to any
special leniency by reason of his or her Aboriginality. The principle of
equality before the law requires
sentencing to occur without differentiation by
reason of the offender's membership of any particular racial or ethnic group.
Nevertheless,
particular mitigating factors may feature more frequently in some
such groups than they do in others. (See R v Fernando (1992) 72 A Crim R
58 at 62-63 as further explained in R v Hickey (NSWCCA, 27 September
1994; unreported); R v Stone (1995) 84 A Crim R 218 at 221-223; R v
Ceissman [2001] NSWCCA 73 esp at [29]-[33]; R v Pitt [2001] NSWCCA
156 at [19]- [21].)"
- I
am not persuaded that his Honour erred in taking into account what he described
as "Fernando considerations" and reducing the weight to be given to
general deterrence for that reason. For the reasons already given, however,
such
a reduction would be modest.
Ground 4 - The total sentence imposed was manifestly
inadequate.
- It
is not necessary to deal with this ground of appeal. Error in his Honour's
sentencing process has been identified and the errors
are of such a kind that it
will be necessary to re-sentence the respondent.
Conclusion and re-sentencing
- Section
5D(1) of the Criminal Appeal Act 1912 provides that this Court, on a
Crown appeal against sentence, may in its discretion vary the sentence and
impose such sentence as
the Court considers proper.
- It
follows from my findings of error in his Honour's approach to the objective
seriousness of the offence and to the respondent's
subjective case, that a more
severe sentence should have been imposed on the respondent in respect of count
3. Taking into account
the factors to which I have referred and those referred
to by the sentencing judge in his remarks on sentence, I am of the opinion
that
the respondent should be re-sentenced in respect of count 3 to a term of
imprisonment with a non-parole period of 5 years to
commence on 8 April 2011 and
to expire on 7 April 2016, with a balance of term of 2 years and 6 months to
expire on 7 October 2018.
- The
orders which I propose are as follows:
(1) Crown appeal allowed.
(2) Confirm the sentence imposed in the District Court on 16 February
2012 in respect of counts 1 and 2.
(3) Quash the sentence imposed in the District Court on 16 February 2012 in
respect of count 3.
(4) In substitution for the sentence imposed in respect of count 3, sentence
the respondent as follows:
Count 3 - Imprisonment with a non-parole period of 5 years to commence
8 April 2011 and to expire 7 April 2016 with a balance of term of
2 years and 6
months to commence 8 April 2016 and to expire 7 October 2018.
- JOHNSON
J: I agree with Hoeben JA.
- SCHMIDT
J: I agree with Hoeben JA.
**********
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